Married Couples: Basic Rules for Appointing a Guardian in a Will

For persons with minor or disabled children, naming a guardian is perhaps the most important function of a will.  In naming a guardian in a will, the following rules likely apply.  Please consult with an attorney prior to drafting your will.

(1)    The decision on whom to appoint as guardian is more personal than legal in nature.  Therefore, such matters as the age, relationship to the testator, religion, financial circumstances, marital status, family size, residence size, geographical location, and general temperament of the appointee should be given paramount consideration by the testator.  A divorced testator with custody of minor children should be aware that the surviving biological parent is likely to be given the first priority in the appointment of a guardian for the minor children regardless of who is appointed in the testator’s will.

(2)    One or more alternate appointees should be made in case the primary appointee is unable or unwilling to serve as guardian.  While there is no limit to the number of alternate appointees that can be made, the order of appointment of each alternate appointee should be specified.

(3)    Conditions may be attached to the appointment of any person as guardian.  For example, Mrs. A can be appointed with the condition that she is still married to Mr. A.

(4)    The guardians chosen by the testator should be consulted by the testator prior to the execution of the will.  Any proposed guardian who expresses a wish not to be appointed should not be appointed because a guardian cannot be forced to serve.

(5)    If desired, the testator’s will or trust can provide for the payment of all or part of any expenses incurred by a guardian in caring for the testator’s minor or incapacitated children.  In this regard, it may be preferable to give a third person the power to approve the payment of these expenses.

(6)    The choice of a guardian is not etched in stone.  The guardian chosen can always be changed simply by executing a codicil to the testator’s will.

These rules are basic in nature, but should be followed or considered whenever appointing a guardian.

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